CA Trust, Estate & Probate Litigation

CA Trust, Estate & Probate Litigation

Body Snatchers: Who Controls Your Remains Under California Law?

Posted in Litigation, Videos

Ever wonder who has the legal right to control your remains after you die?  I have never thought about it either, but it came to light last year with Casey Kasem’s body went missing.  Where did it go and who has the right to control it?  Believe it or not, there are rules for that.  In this video, Keith Davidson describes the rules on who controls your remains.

Why I Hate [Love] LexBlog…but I’ll get over it. UPDATE: LexBlog Rocks

Posted in Tips & Links

Want to know how to respond to negative comments about your business on the internet?  Take a page from Kevin O’Keefe, CEO and Founder of LexBlog.  As you can tell from the title of this post, I had a beef with LexBlog recently (see my rant below).  Mr. O’Keefe took the initiative to contact me immediately by phone, email, and replying to my tweet on the subject.  He let me know what they are doing to fix the problem.  And he never once asked me to remove this post.

I thought about deleting it after talking to Kevin and being satisfied that they are working on a resolution, but then I thought the better idea would be to highlight it as a learning experience.  In todays connected world, there will be times in everyone’s business when customer complaints hit the social networks.  People get frustrated, they feel as though their problem is not addressed, so they turn to the only outlet left…complaining to social media.  It will happen to all of us.  The test then for every business is how you respond.  And Kevin O’Keefe responded directly and honestly.  In the end that is what we all want, to be heard.

We all understand that problems arise from time to time.  But we want to know people hear us and care about us enough to address the problem.  After all, we are in a service business, so serving must come first in everything we do.

Thank you LexBlog for hearing me.

 

My Original Rant:

This blog, which we post to weekly, is hosted and supported by a company called LexBlog.  I love LexBlog, they have been a great platform on which to spread education on the topics I love most: Trust and Will disputes.  I have been a valued LexBlog client for over four years, and yet at the moment I hate them.  Why?

I view my internet services, such as LexBlog, the same way you should view your lawyers: they just work.  Don’t explain the technical stuff to me, that’s your job.  Just let me do my thing and I will trust that you will (1) keep my best interests in mind, (2) don’t do anything to harm me, and (3) let me know when you need a decision or input from me.

So this past week LexBlog did a major update to their platform.  I have no idea why, and I don’t want to know why.  I just want this service to work.  It does not.  I went to the trouble of podcasting my blog posts so people would have a choice to either read my articles or listen to them (or both).  LexBlog told me to use Podbean to host by podcasts, I did so.  LexBlog told me I could embed by podcasts, I did so.  LexBlog does an update to its system and I can no longer (1) embed by podcasts, and (2) I am told not to use Podbean any more.  Grrrr.  Frustration at its finest.

So this makes me think of some of the horror stories I hear from people about their lawyers.  People look to lawyers for advice, they look to lawyers for directions, they look to lawyers for comfort, and then what you are told turns out to be false.  Or worse yet, your lawyer tells you not to do something you were previously told to do.  Grrr.  The frustration starts.

But all is not lost.  It starts with good communication.  If I am going to change course on a legal matter, which does have to happen at times based on what facts or evidence are discovered, then it is incumbent on me to communicate the problem and new direction to my client.  Just like changing a platform that makes it impossible to use Podbean should be communicated to me.  Preferably BEFORE the change occurs so I am prepared for the eventual outcome.

More importantly, if a change occurs on a client’s case, it is incumbent on me to provide whatever guidance and support for that change that I can.  It may be easy for me to see the solution to the change, but I have the benefit of understanding the technical side of the law–a perspective not shared by my client.  And clients should not be expected to know the technicalities.  Instead, it is my job to explain the way out.  It may not be an easy solution or welcome news, but it is still my job to explain it and implement it as quickly as I can.

So I now hate LexBlog just as many people end up hating their lawyers.  But that does not mean I can’t get over it.  With some support and guidance from either LexBlog or maybe a new company, I can get on my way and leave this frustration behind.  People do not intend to be frustrating after all, it is just a by product of trying to do something better and not thinking of the consequences of those decisions.  This is a good chance for me to remember how my clients may feel at times and be more conscientious about the turbulent train of litigation.  With understanding and support, we can get through touch changes.

Top 10 Things Every California Trust Beneficiary Must Know!

Posted in Podcasts, Trust Administration, Trustee Breach of Trust, Trustee Removal, Uncategorized

If you are the beneficiary of a California Trust, there are a few things you ought to know to help you understand and protect your rights as a Trust beneficiary.  Here’s the Top 10 things you must know as a Trust beneficiary:

1.  Know your Trust.

Read it and then read it again.  If you don’t understand it (and who really does?) have a consult with a lawyer to go over the Trust terms.  If you don’t know what your right are, you won’t be well armed to protect those rights.

2.  Know your rights as a beneficiary.

Not all beneficial interests are the same.  Some beneficiaries have superior rights than others.  Sometimes you are entitled to a distribution now, sometime you have to wait.  You must know what your beneficial rights are as soon as possible.

3.  Ask for information in writing, follow-up often.

All beneficiaries are entitled to information.  Ask for as much as you want, such as copies of bank statements, checks, trustee’s fees, costs, etc.  Better yet, ask for the information in writing.  It does not take much to send an email or a letter listing what you want to see.  It does NOT need to be sent by certified mail, just get it to the Trustee in writing as soon as you can.

4.  Ask for an accounting in writing, after the six months or one year.

Unlike information described in number three above, not every beneficiary is entitled to an accounting.  In fact, only current income and principal beneficiaries can demand an accounting, unless the Trust specifies otherwise (and they usually don’t).  If you are a current income or principal beneficiary, then you will have to wait at least six month to get an accounting.  But once the time comes, request an accounting in writing.  Again, you need not send anything by certified mail, just get it out in writing as soon as you can.

5.   Know your income tax consequences.

The good news: most of the assets you receive by way of an inheritance are NOT subject to income tax (except for things like 401(k)’s and IRA’s which have a built in income tax when you receive them because the decedent put the money away tax free during life).  The bad news: if the Trust generates income, such as from rental property or investment accounts, you may be on the hook for a portion of the income tax generated by the Trust assets regardless of whether you receive any money from the Trust.  so it pays to learn what income tax consequences you can expect from your beneficial interests.

6.  You have the right to question and challenge your Trustee without fear of the no-contest clause.

If you start questioning the actions of your Trustee, or you need to go to Court to enforce your rights as a beneficiary, you have nothing to fear from a Trust no-contest clause.  But yet, Trustees (especially private individual Trustees) continually threaten disinheritance under a no-contest clause if their actions are challenged.  Well Trustees can say what they want, it simply is not true.

7.  Discretion is not absolute.

Many times a Trust will give the Trustee “discretion” to make distributions to a Trust beneficiary.  While Trustee’s have wide latitude in exercising discretion, it is not absolute.  That means a Trustee must act reasonably under the circumstances and make distributions when they are needed.  A Trustee cannot refuse to make a distribution just for the sake of saying no.

8.  Communicate often.

Wonder what’s going on with your Trust?  Ask about it.  Don’t get a satisfying answer?  Ask again, and then follow-up with the Trustee, and then keep asking.  A lack of communication is a bad thing for a beneficiary.  And your Trustee has a duty under California law to communicate with you.  So ask away, the earlier the better.

9.  Investments matter.

Every California Trustee has a heavy burden to invest Trust assets under the rules of the Prudent Investor Rule.  The rules requires Trustees to act reasonably and responsibly in investing.  Trustees are not allowed to make risky investments.  But not every Trustee knows or implements their duties to invest properly, so know the investment rules and ask your Trustee if he or she is following the rules.

10.  Trustees are not all powerful, they have duties, obligations, and responsibilities. 

The number one problem with private people acting as Trustees is that they think they can do whatever they like.  The common misconception is that the Trustee is “in charge now” and can act as though they are the Trust creator.  Not true.  In fact, Trustee’s have far more duties and obligations than they can even imagine.  But if no one informs them of their duties, then they may continue to act under this misconception, which can do a lot of damage to you as a beneficiary.  Trustee’s are not all powerful, and sometimes they need to be told as much.

How to Obtain a Copy of My Mother’s California Will…

Posted in Podcasts, Wills

Your parent dies and after grieving you wonder, where is his or her Will?  Didn’t mom say she had a Will, and she mentioned something about it going equally to all the kids, but what happened to that Will?

So you call your siblings and ask about the Will.  You are told that your sister has it, but she will not show it to you because you are disinherited so you are not entitled to a copy.  Disinherited?  How can that be, mom never mentioned anything about disinheriting you.  Plus, you and mom got along so well, how could this happen?  Are you even being told the truth?

You persist and demand a copy of the Will in writing.  You believe you should at least see the Will before you give up and go away.  Something just does not feel right.  You knew you and your sister were not close, but you never imagined she would do something like this, but what has she done and how are you going to find out?

Your sister never responds or she sends you a threatening message and tells you that you will never see a cent of your mother’s assets because mom hated you.  Oh really?  That is the first you ever heard of mom not liking you.

Now comes a call to a lawyer.  The lawyer tells you that under the California Probate Code you are entitled to a copy of your mother’s Will because you are an “heir-at-law” of your mother.  Even if the Will did disinherit you, you are still entitled to a copy.  Great, now how do you get that copy?  That’s not as easy as it should be.

Bottom line: you must file a Petition to compel your sister to hand over the Will.  In other words, there is no way for you to force your sister to hand over the Will without going to court and seeking a court order.  The good news: that a relatively straightforward petition and the court will grant your request (most likely).  The bad news: it costs money to hire an attorney, draft up the petition, and pay the court filing fee.  But will your sister have to pay that cost?  No.  As ridiculous as that sounds, it is highly unlikely that your sister will have to reimburse you for your attorneys’ fees and court costs because under our system each party pays their own fees and costs.

Once you have a copy of the Will, however, then you will know for certain what your rights are and how to take the next step to assert your rights.  Hang in there, it can be a frustrating process, but when you mom’s legacy is at stake, it’s worth the struggle.  Or maybe it’s not worth the struggle, that’s a question only you can decide.

Top 14 for 2014: Our Top Blog Posts of the Year!

Posted in Uncategorized

Another year almost down means it’s time to reflect on what took place this year before looking forward to a happy and hopefully prosperous 2015 (that sounds weird).  Here is our pick of top 14 posts for 2014 based on the amount of feedback we received from each post.  Thank you all for reading our posts and we wish each of you an happy, health and prosperous 2015!

1.  California Trust Amendment vs. Trust Revocation–What’s the difference?  There are different ways in which you can amend a Trust versus revoking a Trust in California.  It pays to know the differnce between the two.

2.  A Better Standard for Undue Influence in California Trust and Will Cases.  This is a four part series detailing the newly enacted rule for proving Undue Influence in court.  The four parts include (1) vulnerability, (2) apparent authority, (3) actions and tactics, and (4) equity.

3.  Mickey Rooney’s Estate — Separate fact from fiction.  Whenever a big name celebrity dies there is always speculation about his or her estate.  The first news we hear is what their Will says.  Since all original Wills are required to be filed with the court, they become public documents after death.  But the Will only tells a portion of the story, and sometimes it is a very small portion.  Since so many assets pass now by Trust, joint tenancy, beneficiary designation and the like, the Will may have nothing to do with the overall value of a person’s estate.  But the speculation continues…

4.  When Planning Fails: Casey Kasem’s Lessons for California Trust and Wills.  Here’s another celebrity story in the news, this one describing an all to familiar scenario: new spouse vs. old kids.  Anytime a new spouse is in the picture, the time is ripe for a disagreement.  And when an elder loses the ability to manage themselves, the fight heats up over who controls the elder.  This tragic story was played out on a public stage in the case of Mr. Kasum.

5.  Abused Trust Beneficiaries in California Trusts and Wills.  Every year we hear from hundreds of abused Trust and Will beneficiaries.  The need to hold fiduciaries accountable and insist that they follow their fiduciary duties is growing year by year.  But first, you have to know if you are being abused.

6.  Broken Promises: Are Oral Promises to Make a California Trust or Will Enforceable?  Spoiler alert: the answer is a definite yes.  But you have to act fast if you want to enforce that promise because the statute of limitations runs within a year of a decedent’s death.  The clock is ticking, time to understand, and assert, your rights.

7.  Casey Kasem’s Missing Body…Who has the right to control your body after death?  Unfortunately, the saga of Mr. Kasem continued after his death as the new spouse and kids fight over the disposition of Mr. Kasem’s remains.  It is an ugly case faced by many people every year.  It pays to know who has control of your body after you’re gone.

8.  Money, Family, Love, and Wills: Where does it all end for Anna Nicole Smith’s estate?  You think your legal case has lasted too long, try going 19 years in litigation.  This year another part of the Anna Nicole Smith case came to an end, but not the entire case.  Even though all of the principal parties are dead, the case lives on.

9.  How to Use a Financial Elder Abuse Claim in Your California Trust or Will Contest.  The law of Financial Elder Abuse took a big leap forward in Trust and Will actions with the unification of Undue Influence.  The same definition for undue influence now applies to both Trust and Will actions and Financial Elder Abuse claims.  That means in a majority of cases you can now bring both claims in one lawsuit.

10.  Trustee Surcharges: Holding Trustee’s Liable for Bad Acts.  When a Trustee breaches his duty of Trust, he can be held personally liable for the damage caused.  This is referring to as a Trustee surcharge.  In this video we hear Stewart Albertson discuss some of the interesting points of a Trustee surcharge.

11.  From A to Zeal: What it takes to win your California Trust or Will lawsuit.  I must admit this is my personal favorite.  The idea of handling a client’s case with energy and enthusiasm is what gets us up out of bed every morning.  And it just happens to increase the chances for success.  It works for everyone.

12.  How Long Will it Last? A California Trust or Will contest can take some time….  Welcome to our court system.  What used to be a slow system got even slower with the recent budget crunch, which took over $500 million (yes, that’s half a billion dollars) out of the court system.  Why does it take so long?  A little constitutional requirement of undue influence.

13.  Whatever Happened to “You Broke It, You Buy It?”  Why California Trust law won’t give you no satisfaction….  While a Trustee might be liable for any money damages caused to a Trust, there is no concept to reimburse you for your emotional damage, pain and suffering, or any other type of related damage.  Might be surprising, but better to know beforehand what damages you can get.

14.  Can You Ex-Spouse Inherit Your Property in California?  Maybe.  Sounds disturbing to know your ex may be able to inherit your property?  You should know the law, and then plan accordingly.  Especially when it comes to life insurance: CHANGE YOUR BENEFICIARY DESIGNATIONS!  It takes so little time to plan properly, yet it makes a world of difference if done properly.

There you have it our top 14 blog post for 2014.  Hope you enjoy them and all of our posts.  We look forward to bringing you more usefully and interests Trust and Will litigation information next year.

Happy New Year!!

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